Sex in the Noughties: How was it for you?

Comment When it comes to sex, New Labour claims that the last decade has been about the rights of sexual minorities and support for victims. In the last few years, however, that view has been challenged by a gathering dissent that includes many supposed beneficiaries of such liberalism.

An alternative demand for sexual liberation is coming of age, and its roots are growing in the most unlikely of places.

The official message is set out in a joint statement from the Home Office and Ministry of Justice: "The Government’s priority is the protection of children and vulnerable people from sexual exploitation and violence. Sexual violence and childhood sexual abuse are amongst the most serious and damaging crimes in our society".

They add: "Our three main aims are to support victims of violent sexual crime, improve the criminal justice response to these crimes and to prevent them occurring in the first place."

That is a clear and not altogether inaccurate reflection of the last decade’s law-making. On coming to power back in 1997, Labour instituted the Sexual Offences Review Team (SORT) to carry out a wholesale review of the law on sexual conduct.

The consultation document - the appropriately named "Setting the Boundaries - makes for sterling reading: shock horror as the Team discover that neither necrophilia nor bestiality are strictly illegal (though the latter was always capable of being dealt with under cruelty legislation). Some peculiar logical gymnastics take place as the Team decide that despite the absence of any evidence that necrophilia actually happens, it is such a horrid pratice that there ought to be a law against it.

There is a narrow squeak for late night leakers, as SORT briefly contemplated making exposure a "strict-liability" offence: luckily that one was headed off after strong lobbying from the naturists.

The Team also put forward changes to the law on rape, firming up a shift from "honest belief" in consent being a valid defence to "reasonable belief" being required. They then built on this, as the idea that it is "reasonable" to believe someone incapacitated by drugs or alcohol can give valid consent was holed by legislation although, courtesy of judges, not yet wholly sunk.

There were, too, major gains on sexual orientation and identity with moves to strengthen protections for the Lesbian, Gay, Bisexual and Transgender (LGBT) communities: an equalisation of the age of consent between gay and straight; and new powers to allow gender re-assignment to be reflected in a revised Birth Certificate.

So far, so good. In parallel with the law, the real world has moved on too: Gay Pride is widely celebrated across the UK; BDSM is hovering on the edge of mainstream culture; swinging is the new boom industry, whilst polyamory is putting its head above the parapet. In many parts of the country, so long as practitioners are discreet, police even turn a blind eye to "dogging".

Have you got a license for that Sir?

Who could possibly doubt that the "noughties" have been a decade of unparalleled sexual license?

In fact, the list of doubts is long and growing longer. Following a particularly gruesome murder in 2003 – the Graham Coutts case – the government determined that many social ills could be tracked back to the internet. Nasty (pornographic) stuff was entering the country, and there was little the authorities could do about it: so the Criminal Justice and Immigration Act 2008 made possession of "extreme porn" a criminal offence.

Whilst Ministers talked of this being about worst cases – the "aberrant" and the "abhorrent" – it represented a widening in English Law of a principle only previously claimed in one supposedly exceptional case: the possession of material depicting child abuse.

This Act was followed shortly after by the Coroners and Justice Act 2009, which applied the same principle – of criminalising possession – to cartoon material.

The latter, of course, was ostensibly about "protecting children", which has been a second consistent theme for the decade: whenever the government had qualms about civil liberties, just appeal to public paranoia about the predatory paedophile – and the scope for opposition and counter-argument automatically diminishes.

Thus, possessing certain images was first introduced as criminal offence – by Labour – in the Protection of Children Act 1978 (pdf). Few would object to that principle: although in recent years, there has been increasing debate about whether making such possession a "strict liability" offence has contributed to child safety – or simply made society increasingly nervous about looking at images that a previous generation would have considered perfectly innocent.

That protection took tangible shape through the Internet Watch Foundation. The IWF flourished through the noughties, suffered brief embarrassment over an attempt to block an image already widely accepted culturally, and now, as the web becomes a less useful means to distribute child abuse images – the slack is being taken up by P2P and virtual networks - is mellowing into distinguished establishment respectability.

Still on "children": the SOA 2003 also extended the definition of a child to “under 18”, making it, for the first time ever, a criminal offence to possess an image depicting an act that is not itself criminal.

A further massive threat to liberties is the Safeguarding Vulnerable Groups Act 2006 (the "Vetting Act") which, through the aim of "protecting children" gives the state unprecedented powers to bar individuals from working in a third to a half of jobs in the UK.

Opponents have cited two wholly objectionable aspects of this legislation: first, that whether one is fit to work with the vulnerable now depends largely on one’s NOT participating in "inappropriate" sexual activity; and second, the fact that the underlying database will include third party reports and unsubstantiated allegations when it comes to evaluating sexual conduct.

Any flavour you want - as long as it's vanilla

Lest anyone imagine the government is talking about "inappropriate behaviour with children", a review of news stories over the last few years reveals dozens of cases where adults guilty of little more than indgulging in consenting legal activity with other adults have been outed and then fired for their pains. In one case, a youth worker who had acted in a porn film some five years previous was suspended and later fired when this fact came to light.

This insistence on the "heteronormative" – basically: sexual freedom, so long as it is mostly straight, non-commercial, lights out and "vanilla" - is beginning to chafe. After all, as Consenting Adult Action Network argues: "If it's not illegal, what business has government to intervene?" But this has not stopped the government going a step further, piloting the right to check out a new partner’s "riskiness" on much the same basis.

The government also buys into the theory that economic measures are the way to clamp down on sexual "nastiness". One rationale behind the extreme porn laws was that cutting off demand for a certain sort of image would disrupt the trade. The same thinking appears in recent legislation on prostitution – the Policing and Crime Act 2009 – which makes no bones about going after the punter.

This is despite the counter-argument from organisations representing sex workers, such as the International Union of Sex Workers, that such an approach is ideological, does little to protect those involved, and in the long term may increase the levels of harm inflicted.

So where are we now? There are growing signs that a broad coalition is emerging from a number of disparate sexual interests to challenge the government’s credentials over sex. This includes many from the Gay Movement: an increasingly militant "Queer Academy"; sex workers; and politicised practitioners of bdsm.

In that context, 2008 saw some support for the belief that legal sex between consenting adults is no-one’s business but those taking part, with the landmark victory by Max Mosley over the News of the World. An English court decided that there was no public interest in lurid exposure of his private life and newspapers have since been treading more carefully – although the Vetting Act seems set to breathe new life into media excuses for delving into individual private lives.

The radical critique of government thinking is based on the accusation that most recent progress has been illusory and "assimilationist": that is, select groups have gained rights only where they play the game and make the effort to appear "normal". As the government looks set to use the Equality Bill now before parliament to roll back rights recently granted to the LGBT section, the radical point of view is gaining ground.

That is: rights should not be granted on the basis of "fitting in" – but should be applied universally. Why, after all, should the debate on sexuality be about which group gets preferential treatment, when discrimination on the grounds of a peculiarly prurient view about sexual propriety remains endemic within our culture?

According to academic and blogger on sexual law, Chris Ashford: "The question must surely be whether the next decade will see growing number of gays, lesbians and queers starting to question the reforms to sexual conduct over the last ten years. Perhaps it is the tribute to how rapid and far-reaching the change has been over the last decade, that gay men and women can actually criticise it."

Time to spank hit back

When it comes to charting the sexual history of this decade, perhaps two events will stand out. The first relates to a report that slightly pre-dates New Labour’s coming to power. In 1995, the Law Commission tentatively suggested that unless serious social harm was being done, sado-masochistic acts ought not to be the subject of criminal law.

Their proposal was duly considered by SORT – and duly shelved. For when it came to issues of consent, the Law Commission was interested in the question of when it was permissible for an individual to say Yes – without expecting the heavy hand of the state to intervene. Not so SORT, for whom the central questions of consent were about when the state should back an individual’s right to say No.

Both questions need to be addressed: but under New Labour, the second has taken priority.

Last observation, though, to Law Professor Stephen Guest. A recent debate in the Lords considered whether to permit a "freedom of expression" exemption in respect of a proposed new law on "stirring up homophobic hatred".

On behalf of the government, opposing the freedom of speech clause, Justice minister Claire Ward stated that the problem with having such a clause was that people would use that "freedom of speech" clause to attack gays.

Professor Guest writes: "It was clear she had no grasp of the fundamental importance of freedom. That stance, that freedom of speech was a hindrance to freedom, will eventually backfire. If you are claiming legitimacy for your view that the rights to freedom of gays, of minority religions, and of racial minorities is fundamental, as I do, it is not in your interest to try to achieve this by attacking the idea of freedom in general."

In the end, that may well serve as an epitaph for the entire decade when it comes to revision to the laws on sexuality: on the one hand, an acitivity that is being practiced in more and more outlandish ways by individuals whose primary motivation is about having fun; on the other, a protectionist government, whose gut reaction to this situation - as many others - is a desire to impose a level of top-down nit-picking control which is in the end wholly at odds with that activity. ®